FIRE, Aim, Ready!

Recent controversies over free speech on America’s college and university campuses have inspired various organizations to propose policy changes for the consideration of college administrators. A report from the American Council of Trustees and Alumni, "Building a Culture of Free Expression on the American College Campus: Challenges and Solutions," cheapens the argument for freedom of expression by appealing to politically fueled stereotypes of faculty members and administrators. In attacking what it sees as the excess of political correctness, it defends free expression on campuses for weak reasons.

Authored by law professor Joyce Lee Malcolm of George Mason University, the report is part of ACTA’s Perspectives on Higher Education. Malcolm relies heavily on a report by the Foundation for Individual Rights in Education, or FIRE, called "Spotlight on Speech Codes 2017," which claims that 423 of the country’s top 450 colleges and universities have “policies that threaten free speech on campus.” Included in FIRE’s tally are institutions that ban “verbal abuse” and those that ban “posters promoting alcohol consumption,” as those policies “could be interpreted to suppress protected speech.” Reasonable minds may question whether colleges and universities have gone too far in chilling free speech in the name of welcome and inclusion. But it is imbalanced sensationalism to lump colleges and universities that campaign against the scourge of excessive alcohol consumption with those banning speech because it’s offensive to some students.

The report goes on with the predictable criticism of campuses that create safe spaces and speech codes as antithetical to free speech. ACTA makes the perplexing argument that “these ostensibly progressive measures are, in actuality, chilling free speech and frustrating the open dialog that is essential to academic freedom on campus.” As with most criticism of safe spaces, the report fails to define the safe spaces it is concerned about. Colleges are traditionally full of safe spaces where like-minded people gather -- think faculty lounges and locker rooms as well as culture houses. Why do safe spaces only come under fire from groups like ACTA when they are spaces for people who disagree with controversial speakers or when they are spaces for underrepresented students to gather to support each other?

In fact, all safe spaces serve to advance speech by enabling those who are often disenfranchised to have a place and platform to develop their views before adding their voices to the open dialogue. A corollary to free speech is the freedom to associate. So-called safe spaces do allow like-minded individuals to associate in ways they wish. Freedom of association should not be trumped by ACTA’s distorted view of freedom of expression.

Perhaps the most perplexing part of the ACTA report is its full-throated advocacy of academic freedom and freedom of expression, while at the same time condemning professors who “use the classroom to present their personal political views.” Is ACTA, an advocate of free expression, really serious that faculty members must censor their own political beliefs when discussing matters of public policy? Does ACTA really believe that college students can’t make up their own minds when their beliefs are challenged by professors, or that college professors are not capable of working through bias when leading a class discussion that draws on political views?

Also singled out for criticism are professors whose students complain that “some course readings present only one side of a controversial issue.” Is ACTA serious in suggesting that readings that present only one side of an issue should be taken out of the classroom? Would ACTA ban the writings of the founders of our nation and Dr. Martin Luther King Jr. as one-sided? Surely ACTA can make a better argument for ensuring freedom of expression than this.

The issue is not whether faculty members lean right or left. The issue is whether faculty members are intolerant of their students’ beliefs.

In 1991, I conducted a study of this issue for the Section of General Practice of the American Bar Association published in the Washington University Law Quarterly. The survey found that 60 percent of the law students responding believed that some of their professors did not tolerate political beliefs that differed from their own. And worse yet, 51 percent of the law students responding did not always feel free to express their disagreement both in class and on exams and papers. The survey findings were surprising, considering that law students are often the most aggressive, self-assured students in the academy.

In my 27 years in higher education since I published that study, I have witnessed a growing understanding by professors that when they introduce their political beliefs in the classroom, they need to encourage and support those who disagree. In doing so, they model for their students civil civic discourse. But there are still outliers, and college administrations and faculty colleagues must be ever vigilant to make sure that all students, conservative and liberal, are valued and encouraged to present their opinions as welcome voices in a dialogue built and strengthened by multiple views.

ACTA continues to tread on dangerous territory by arguing that “universities at the official institutional level should remain neutral on issues of public controversy,” although it appropriately recognizes that “individuals have the complete right to articulate their views.” ACTA’s position implies that college and university presidents should not, in their capacity as presidents, speak for the institution. Yet colleges and universities have long added to the national debate by taking positions on controversial issues such as affirmative action, environmental sustainability and immigration policies, even knowing that some individuals in the college community may disagree.

The Board of Trustees here at Augustana College has taken a different view. Augustana’s board, like other boards, does not so much view presidents and college leaders as speaking for the institution as it sees them as leaders chosen to represent the college and as people whose values are, in part, the reason why they have been selected for those positions. Our board has adopted a policy that states that the college, through its president, should maintain high visibility and high public leadership. When issues are closely connected to our mission or to the values in our strategic plan, I, in my capacity as president, speak out. Those issues include government policies on education, support for diversity and inclusion in higher education (including support of DACA, or the Deferred Action for Childhood Arrivals program), access to and readiness for higher education, and safety or welfare issues impacting our students (including strong support of Title IX). Likewise, we often speak out, and often with partners, on other important issues where our community might benefit from our leadership -- including issues of interfaith understanding, integrity of college athletics, and local community development. Each of these has a close nexus to our mission.

We do not engage in the self-censorship that ACTA would encourage, as we view ourselves as having an affirmative responsibility to improve our community and higher education through our advocacy. College leaders speaking out in a measured but courageous way is yet another way to model civil civic discourse to our students.

As do many free speech advocates, the ACTA report praises the "University of Chicago Report of the Committee on Freedom of Expression." Like most lawyers, I am a strong advocate of free speech and do not disagree with the Chicago Principles. They are clear, concise and unequivocal -- and, in my view, correct. But they are not enough, and that is where ACTA’s approach is incomplete.

The Chicago Principles do not sufficiently recognize that protected speech can injure. I’ve seen how some protected speech can hurt some students. Many historically underrepresented students wonder whether they truly belong at our colleges and universities. People exercising their right to free speech can harm this sense of belonging, and we know that sense of belonging is one of the best predictors of retention and graduation. I agree with ACTA that the fact that speech offends or makes students feel unwelcome does not provide enough cause to shut it down. But, in my view, it does create an obligation for institutions to mitigate the impact on students.

Several years ago, recognizing the damage that speech can do, Augustana changed our free speech policies from the Chicago Principles to the PEN America Principles on Campus Free Speech. The PEN Principles recognize the “core value of free speech” and affirm that “college should be a place where ideas can range free, dissent is welcomed, and settled wisdom is reconsidered.” While protecting free speech, the PEN Principles appropriately challenge colleges to speak out against hateful speech. The report eschews simple solutions and contains a nuanced analysis of supporting students who have been marginalized by protected speech.

Notwithstanding my criticism of its report, ACTA has had an impact on higher education. Reports such as ACTA’s have provoked discussion and reinforced the presupposition of some with overly suspicious views of higher education. But I find that its influence is waning, as reports like this one are viewed even by most readers as being over-the-top. Even casual observers of higher education know that colleges are not full of safe spaces with “cookies, coloring books, bubbles, Play-Doh, calming music, pillows, blankets and a video of frolicking puppies,” as ACTA would encourage us to believe. And many recognize the effectiveness of these reports is diminished by the worn-out and ill-considered arguments.

Justice Oliver Wendell Holmes Jr. wrote in the 1919 U.S. Supreme Court Case Abrams v. United States, in what has been called the most powerful dissent in U.S. history, “The ultimate good desired is better reached by free trade in ideas -- that the best test of the truth is the power of the thought to get it accepted in the competition of the market.”

ACTA serves the public debate by defending free expression. But it harms the debate by demanding that free speech take place on its terms, and that professors and senior administrators withdraw their voices from the marketplace of ideas.